Belzung v. Owl Taxi
Decision Date | 09 March 1934 |
Docket Number | No. 1246.,1246. |
Citation | 70 S.W.2d 288 |
Parties | BELZUNG v. OWL TAXI et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; R. B. Minor, Judge.
Action by Eugene Belzung against the Owl Taxi and another. From the judgment, plaintiff appeals.
Affirmed.
Gus B. Mauermann, of San Antonio, for appellant.
Eskridge & Groce and Walter Groce, all of San Antonio, for appellees.
This is a suit brought by Eugene Belzung against Frank Serda and Frank Beitel to recover damages for personal injuries. Frank Serda is also referred to as "Owl Taxi." On March 18, 1931, according to the undisputed evidence, Belzung was seriously and permanently injured by being struck by a taxicab belonging to Frank Serda, and operated for him in his business. The place of the injury was on private property of Beitel Lumber Company on the south side of El Paso street in the city of San Antonio. Of the two or more grounds upon which Frank Beitel was sought to be held liable for negligence, the jury to whom the case was submitted on special issues acquitted him of all of them, unless by reason of their finding to the effect that suddenly and without warning or signal he turned his car to the left across El Paso street and immediately in front of the taxicab of the defendant Owl Taxi. In reference to that act, the jury further found that such conduct of said Beitel did not directly cause, or directly contribute to, the collision and consequent injuries. In regard to the several grounds of negligence charged to the Owl Taxi, the jury found that the taxicab was being driven at a negligent rate of speed, which directly caused, or directly contributed to, the collision and injuries; that the driver of the taxi failed to have his car under control, which also directly caused, or directly contributed to, the collision and injuries that just before the collision the brakes on the taxicab were in defective condition; that it was negligence to operate the same in such condition, which negligence directly caused or directly contributed to, the collision and injuries.
In response to one issue inquiring whether the several grounds of negligence of Owl Taxi which they found to have directly caused, or directly contributed to, the collision and injuries, was the sole proximate cause of the accident in question, they answered "No." The amount of damages was found to be $3,500, and upon the verdict of the jury the court adjudged that plaintiff take nothing against Frank Beitel, and gave judgment against Owl Taxi for $3,500, from which judgment the plaintiff, Belzung, has appealed.
Appellant's propositions 1 to 5 each complain of certain acts as misconduct of the jury, by reason of which it is insisted the court should have granted a new trial. The misconduct charged to the juror Manton in failing to disclose, in response to questions, that he had been defendant in a damage suit is not supported by the record in that the juror, when called as a witness on the hearing of the motion for new trial, denied he had been asked any such question. There was, therefore, at least an issue of fact raised which the order overruling the motion for a new trial impliedly determined against appellant. The fact that said juror was appointed foreman of the jury at his request is certainly, we think, not conclusive evidence of bias or prejudice such as to disqualify him. Upon the contention that the same juror refused to agree to the amount of damages until the other jurors agreed to answer a previously unanswered issue so as to acquit one of the defendants of liability is not supported by the undisputed evidence. The implied finding of the trial court to the contrary is not without sufficient evidence to support it. The contention that there was misconduct in that members of the jury discussed the probability that appellee Beitel had liability insurance and his financial ability to pay is likewise not supported by the undisputed evidence. One juror testified that he did not remember anything about it at all. Others did testify that some mention was made of the matter, but none of them were able to state what was said. If there was any discussion of the fact or probability that Beitel was protected by insurance, or of his financial ability to pay, the harm would be in the supposed tendency of a jury to award a larger recovery, or to hold one to some recovery when otherwise they would not. The fact that by their findings Beitel was acquitted of liability would affirmatively show that in this case there was no injury. Lackey v. Southland...
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